77 Ala. 339 | Ala. | 1884
The equitable remedy of specific performance of agreements for the sale of lands rests largely in judicial discretion, directed and regulated by defined rules. Well settled elements and incidents are requisite to granting relief; but whether relief shall be granted depends upon an equitable consideration of the particular circumstances of each case. The contract must be just, fair, and reasonable; must not have originated in mistake, or-surprise, or violation of confidence, or breach of trust, or advantage of condition, nor been obtained by any unconscientious or unfair methods; must be reasonably certain in respect to the subject-matter, the terms, and stipulations ; must be founded on a valuable consideration, and its performance not work hardship or in justice. —Moon v. Crowder, 72 Ala. 79.
That there was an agreement to sell the lands to complainant, is not denied. The terms of the contract,- as to which there does not appear to-be any controversy, are as follows: The devisees under the will of G. W. Carlisle agreed to sell the lands to complainant for the sum of $3,475.00. Seven hundred dollars of the purchase-money were to be set apart for the widow of the testator, in lieu "of a bequest to her of some personal property, and a pecuniary bequest of fiv'e hundred dollars, to be held by complainant and the defendant (M. N. Carlisle), in trust to loan, and pay her the interest thereon annually, and at her death to be divided among his heirs. The balance of the purchase-money was to be paid to the devisees,
2. The main disagreement is in reference to the mortgage to be given to the widow. The bill alleges, that the sum of seven hundred dollars, set apart for the widow, was to remain secured by mortgage on the lands, the interest to be paid annually, and the principal payable at her death; to be discharged by the payment of one hundred dollars to each of the other devisees, the complainant retaining the same amount for himself. In his testimony the complainant says, the sum was to remain secured by the land, so long as he paid the interest promptly. The widow claimed, that the aggregate of the amounts going to her was to be payable at twelve months from the sale, and that the mortgage should be executed accordingly. It is unnecessary for us to determine which version is correct. It is obvious there is a variance between the allegations of the bill, and the testimony of complainant, in respect to the terms of the mortgage, and between both of these and the evidence of the widow and M. N. Carlisle. The terms of the contract must be definitely alleged, and established, as alleged, by clear and satisfactory proof. If the .evidence fails to prove the contract, or any of its terms are left in doubt or uncertainty, a specific performance will be refused. — Moon v. Crowder, 72 Ala. 79; Aday v. Echols, 18 Ala. 353. Uoubt and unceitainty as to the terms of the contract arise on the evidence.
3. The sale was joint; the contract was an entirety. The delivery of the deed, and the delivery of the mortgages, evidently, were to be simultaneous acts. All the mortgages were to cover the entire lands. The cash payments have not been made, nor have the mortgages been executed, to several of the devisees; and no payment, as interest or otherwise, has been made to the widow. The evidence tends to show, there has been no delivery of the deed signed by the devisees, which is in the possession of the complainant, so as to givé it effect as a conveyance, or by which the grantors parted with dominion over it. Holding the deed, and claiming it as a valid conveyance as to all except the defendants, a specific performance by one of the several vendors will not be decreed in favor of the complainant, in the absence of a performance of, or an offer to perform, the conditions required of him as to the other vendors. The court can not ignore the prospect of other and subsequent suits between the complainant and the other devisees,
4. It is not essential, in all cases, that the complainant shall make an actual tender of performance, before bringing suit. Circumstances may render such tender impracticable, or unnecessary. When the stipulations are mutual and dependent - — simultaneous performance by both contracting parties being intended — a tender should, ordinarily, precede the commencement of the suit. And whether a precedent tender is requisite, or may be dispensed with, the complainant should aver in his bill readiness and willingness, and an offer to perform, submitting himself to the orders and directions of the court, and entitling the defendant to a decree, whereby the rights of all the parties to the contract may be ascertained and protected. Jenkins v. Harrison, 66 Ala. 345; Gentry v. Rogers, 40 Ala. 442; Bell v. Thompson, 34 Ala. 633. It is true, that neither the widow nor the other devisees are made parties to the bill; but, on a bill of this character, the rights of parties to an entire and indivisible contract, though not parties to the suit, are considerations which a court of equity must regard in adjudicating the right of complainant to a specific performance by one party.— Curran v. Water Works Co., 116 Mass. 90.
. 5. The widow had on several occasions expressed an intention to dissent from the will of her husband, and take her dower, moved by the natural sentiment to live and die at the homestead, where they had resided for many years, and where he died. She was dissuaded from this course, and induced to consent to the contract of sale, by the complainant and the defendant, M. N. Carlisle, by assurances that she could continue to live at the homestead with complainant, and be kindly and affectionately treated. They were her sons, executors of the will, and trustees of the pecuniary legacy in her favor. Twofold relations of trust and confidence existed. The mother has left the homestead, because of her son’s treatment, as she alleges, but denied by him. Since then, the complainant has made no provision for her support, by paying, or offering to pay the interest, either on the pecuniary legacy, or on the amount set apart for her by the agreement. He has not discharged his duties as trustee. Without indicating any opinion on whom rests the fault, the deplorable estrangement between mother and son renders their living together impracticable, and this consideration is incapable of enforcement. While it may be that it was not expected to incorporate this incident of the contract in any written instrument, it constitutes an equitable
We do not deem it necessary to consider the matters of personal difference between the complainant and the defendant, or to determine the validity at law of the contract. In our vie.w of the case, the former are immaterial; and conceding that the agreement is binding, it does not necessarily follow that a specific performance will be decreed. There are contracts, which a court of equity will not specifically enforce, but leave the parties to their legal remedies.. A less strong case is sufficient to defeat, than is requisite to obtain specific performance.
Affirmed.
